Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
LEROY K. SMITH AND DENNY BYNUM, )
) Supreme Court No. S-
5336
Appellants, )
) Superior Court No.
v. ) 3PA-90-615 CI
)
STATE OF ALASKA, DEPARTMENT OF ) O P I N I O N
CORRECTIONS, SUSAN HUMPHREY BARNETT, )
COMMISSIONER, PALMER CORRECTIONAL )
CENTER, STATE BOARD OF PAROLE, SAM ) [No. 4074 - April 29,
1994]
TRIVETTE, DIRECTOR, BOARD OF PAROLE, )
DAVID COOPER, PAROLE BOARD MEMBER, )
DONALD BRUCE, PAROLE BOARD MEMBER, )
MIKE MILLER, PAROLE BOARD MEMBER, )
ALONZO PATTERSON, PAROLE BOARD MEMBER, )
AND DELORES WEILER, PAROLE BOARD MEMBER,)
)
Appellees. )
________________________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Palmer,
Karen L. Hunt,
Judge.
Appearances: Ted Stepovich, Stepovich,
Kennelly & Stepovich, P.C., Anchorage, for
Appellants. Michael J. Stark, Assistant
Attorney General, and Charles E. Cole,
Attorney General, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.]
MATTHEWS, Justice.
Once prisoners serve their sentences taking into
account whatever time credits they have accumulated for good
behavior they must be released.1 Prisoners who have been
sentenced to a term of two years or more are released to the
custody of the parole board for a period equivalent to their
accumulated good behavior time. This is called a mandatory
parole release.2 The parole board imposes standard conditions
and, in some cases, supplemental conditions of parole on
mandatory parolees. Appellant, Denny Bynum, a mandatory parolee,
challenges the regulations and procedures under which
supplemental conditions of parole are imposed.
Probation officers are employees of the Department of
Corrections. Appellant, Leroy K. Smith, a probationer, and
formerly a mandatory parolee, contends that under the separation
of powers doctrine probation officers must be employed by the
judicial branch of state government.
I.
Denny Bynum was convicted of sexual abuse of a minor in
the first degree and was sentenced in May of 1985 to a term of
imprisonment of eight years. Because of accumulated credits for
good behavior in prison, his anticipated release date was August
18, 1990. In April of 1990 Bynum's institutional probation
officer submitted a request to the parole board to have
supplemental mandatory parole conditions imposed on Bynum. The
request was made on a Department of Corrections form. The form
notified Bynum of his right to submit his comments to the parole
board.3 Bynum promptly submitted his comments. He protested the
proposed supplemental conditions which prohibited residing in a
household with a person under the age of eighteen years, contact
with his victim or with persons eighteen years old or younger,
and the use of alcohol or drugs. The proposed conditions also
permitted tests and searches for alcohol and drugs at any reason
able time. A board member reviewed Bynum's letter and set the
supplemental conditions requested by the institutional probation
officer in a document which explained his reasons.4 The record
does not reflect that this document was given to Bynum. However,
the State contends that it, and the records on which it is based,
were available to Bynum under 22 AAC 05.095(b) and (h).5 Bynum
was sent a copy of his mandatory parole conditions about a month
before he was released on mandatory parole.
Just prior to his release on mandatory parole, Bynum
and Smith brought this action against the State and State
corrections officials (referred to in this opinion collectively
as the State), seeking, among other things, an immediate hearing
to review the conditions placed on Bynum's mandatory parole, and
a declaratory judgment declaring that the current practices
relating to mandatory parole violate Bynum's rights to due
process and equal protection. Smith and Bynum also sought a
declaration that probation officers perform a judicial function
and their placement in the executive branch violates the
constitutional separation of powers doctrine.
All parties moved for summary judgment. While the
motions were pending, Smith was discharged from mandatory parole
and the parties agreed that Smith's claim relating to mandatory
parole should be dismissed on standing and mootness grounds.
Smith remains on probation and his separation of powers claim
regarding probation officers remains. Following oral argument on
the motions, the trial court denied the plaintiffs' motion for
summary judgment and granted that of the State. A final judgment
was entered from which this appeal has been taken.
II.
The following questions are presented:
A. Was Bynum's right to procedural due process
violated by the parole board in imposing supple
mental conditions of parole?
B. Is 22 AAC 20.200, the regulation which
imposes fourteen standard conditions of parole,
inconsistent with AS 33.16.150 which mandates one
standard condition, and authorizes the board to
require other conditions?
C. Are mandatory parolees denied equal
protection of the laws because they are not
permitted to appear before the parole board prior
to their release while discretionary parolees are
granted the right of an in-person appearance?
D. Does the placement of probation officers in
the executive rather than the judicial branch of
government violate the separation of powers
doctrine?6
For the reasons expressed below we give a negative answer to each
of these questions.
A. Was Bynum's right to procedural due process
violated by the parole board in imposing
supplemental conditions of parole?
The United States and the Alaska Constitutions provide
that no person shall be deprived of life, liberty, or property
without due process of law. U.S. Const. amend. XIV; Alaska
Const. art. 1, 7. In this case, Bynum contends that an Alaska
inmate has a constitutionally protected "liberty" interest
relating to mandatory parole conditions. Although Bynum does not
succinctly describe this interest, we gather that it entails the
right to be free from inappropriate conditions of parole -- those
which unduly interfere with a parolee's personal and property
rights. The State takes no issue with Bynum's contention that he
has a protected liberty interest in conditions of parole and we
accept this implied concession.
The question presented in this case is whether the
procedures afforded Bynum to challenge the special conditions of
parole comply with the principle of due process. We have stated
that questions of this type depend on "the nature of the
government function involved and the private interest affected by
the government action." Keyes v. Humana Hosp. Alaska, Inc., 750
P.2d 343, 353 (Alaska 1988) (quoting Arctic Structures, Inc. v.
Wedmore, 605 P.2d 426, 436 (Alaska 1979)). More specifically, we
have followed the lead of the Supreme Court of the United States
which in Mathews v. Eldridge, 424 U.S. 319 (1976), stated that in
order to determine what due process requires, three factors must
be considered:
[F]irst, the private interest that will
be affected by the official action; second,
the risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and,
finally, the Government's interest, including
the fiscal and administrative burdens that
additional or substitute procedural
requirements would entail.
Id. at 334-35, quoted in Hilbers v. Mun. of Anchorage, 611 P.2d
31, 36 (Alaska 1980). The Supreme Court has invoked the Mathews
formulation in reviewing parole procedures. Greenholtz v.
Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 14
(1979).
In order to assess the constitutional adequacy of the
procedures available to Bynum, the procedures must first be
identified. Alaska Statute 33.20.030 provides for mandatory
parole "at the expiration of the term of sentence less the time
deducted for good conduct." Alaska Statute 33.20.040 commits the
disposition of a mandatory parolee to the parole board under AS
33.16. Part of the AS 33.16 parole system governs the imposition
of parole conditions. Alaska Statute 33.16.150(a) sets forth a
condition that all parolees must obey the law. Subsection (b) of
that section sets forth seventeen other conditions that "[t]he
board may require of"parolees. The Alaska statutes, however, do
not set forth how the parole board is to impose these conditions.
Rather, AS 33.16.060(b)(3) provides that "[t]he board shall adopt
regulations . . . governing procedures of the board."
By regulation, the department has established fourteen
standard conditions of parole. 22 AAC 20.200(a). It has also
set forth the general procedural framework for imposing
supplemental conditions. Under 22 AAC 20.270(b), "[a] prisoner
for whom the board is considering imposing a supplemental or
special condition of parole under 22 AAC 20.205 will be provided
a reasonable opportunity to comment on the proposed condition
before its imposition . . . ." (Emphasis added.)7 Prospective
mandatory parolees are given notice of proposed conditions prior
to their release. A request form filled out by an institutional
probation officer suggesting special parole conditions is
supplied to the inmate. If such a form is not used the inmate is
given a copy of the conditions proposed by the board or a board
member. Upon receiving notice of the proposed special
conditions, the inmate is given ten days to comment on them.
Under 22 AAC 20.205 any member of the parole board may
impose supplemental conditions of parole.8 Supplemental
conditions must bear a reasonable relationship to the parolee's
offense and behavior. Thus, 22 AAC 20.205(a) gives the board, or
an individual member, discretion to impose any supplemental
condition "that reasonably relates to the parolee's offense,
prior record, prior behavior, current circumstances, or perceived
risk to the community." Once conditions of parole are set, an
inmate or a parolee may request a modification of the conditions.
22 AAC 20.215. Such requests are made in writing and decided by
the board on the record without an interview of the parolee. The
board must decide such cases within forty-five days after receipt
of the request. The board's decision must be in writing and must
be accompanied by the reason for the decision. 22 AAC 20.215(3)
and (4). The board may order a formal hearing conducted by a
hearing officer "if the change in parole conditions warrants it."
22 AAC 20.215(d).
Bynum argues that (1) the inmate should be given notice
of the proposed conditions 120 days before the date of release
and that the notice should include a statement of the reasons and
the evidentiary basis for each condition, (2) the inmate should
be given a meaningful opportunity to be heard after receiving
notice of the proposed conditions, including at least fifteen
days within which to respond, (3) the board should be required to
issue a written decision listing the conditions that will be
imposed and stating the basis for its decision, and (4) a hearing
should be held if the conditions proposed are intended to
restrict or impinge upon constitutional rights.
Bynum presents his argument in the abstract. He seems
to assume that he has the right to raise hypothetical due process
violations which might occur in some cases but did not occur in
his case. He lacks standing to do this.9 Thus our primary focus
is on what happened to Bynum, not what might happen. We now
address each of his four arguments concerning due process.
1. Notice of Proposed Supplemental Conditions
Due process traditionally entails a requirement of
reasonable notice. One hundred twenty days advance notice of
proposed parole conditions is certainly reasonable, as are many
shorter periods. Bynum in fact received 120 days advance notice.
Thus no due process violation occurred concerning the length of
the notice.
Bynum also argues that the State should be required to
include a statement of reasons for each proposed condition and a
statement of the evidence to be relied upon. However, he does
not argue that he was prejudiced by the State's failure to
provide such information. Although a statement of reasons may
help an inmate formulate a written response in some cases, it is
not generally necessary to satisfy due process requirements. In
addition, the evidence available to the board is available to the
inmate. See 22 AAC 05.095(b), (h). Like the board, the inmate
can review the record which will be before the board and argue
that it does not support imposing certain challenged parole
conditions. A requirement that the notice specify the evidence
which supports proposed special conditions would require
additional work for State corrections officials and provide
little, if any, additional benefit for the inmate.
2. Opportunity to be Heard
Bynum's second request is that inmates be given a
meaningful opportunity to be heard. Bynum does not argue under
this point that a meaningful opportunity to be heard includes an
evidentiary hearing. He treats that contention separately. See
infra point 4. Under the present heading he contends that the
inmate should have the opportunity to present evidence to either
correct inaccuracies in his file or demonstrate that there is no
basis for imposing a given condition of parole. He also contends
that the inmate should be given fifteen rather than ten days
within which to respond.
The regulations provide that when the board is consider
ing imposing special conditions, the inmate will be given "a
reasonable opportunity to comment on the proposed condition
before its imposition." 22 AAC 20.270(b). We construe this to
mean that the inmate will be permitted to submit written
material, including the statements of others, in an attempt to
correct errors in his records, respond to concerns implicit in
the notice of proposed conditions and otherwise support his
position. These procedures afford the inmate an opportunity to
be heard and to represent his interests. That is all that due
process requires. Mathews v. Eldridge, 424 U.S. at 348; Keyes v.
Humana Hosp, 750 P.2d at 353 ("The crux of due process is an
opportunity to be heard and the right to adequately represent
one's interests."). Bynum does not claim that he was prevented
from making any such submissions.
Bynum also contends that due process requires at a
minimum fifteen days within which to object to proposed
conditions rather than the ten days which he was given. In the
abstract, this argument may be correct, especially if the inmate
intends to file extensive opposition in an effort to correct
mistakes in the record. Such an effort could easily take more
than ten days given the restrictions placed on prisoners.
However, Bynum filed his opposition within four days of receiving
notice of the proposed conditions, did not ask for additional
time to submit more material, and does not identify any manner in
which he was prejudiced by the ten-day period. Thus his claim
that his due process rights were violated by an unduly short
response period was correctly rejected.
3. Written Decision of the Board
Bynum argues that in order to preclude the possibility
of arbitrary or mistaken decisions by the board, it is necessary
for the board to provide the inmate with a final written decision
listing the imposed conditions and stating the basis for its
decision. Under 22 AAC 20.205, supplemental conditions must
reasonably relate "to the parolee's offense, prior record, prior
behavior, current circumstances, or perceived risk to the
community."
We have ruled in a broad variety of administrative
adjudications that the decision maker should identify the reasons
for his decision. We reviewed the law on this subject in City of
Nome v. Catholic Bishop of Northern Alaska, 707 P.2d 870, 875
(Alaska 1985):
Even absent a statutory duty to make
findings, an agency that makes an adjudica
tive decision must articulate its reasons.
See Kenai Peninsula Borough v. Ryherd, 628
P.2d 557, 562 (Alaska 1981) (requiring
findings in formal adjudications); Fields v.
Kodiak City Council, 628 P.2d 927, 933
(Alaska 1981) (requiring findings in informal
adjudications). Such findings
facilitate judicial
review, insure careful
administrative deliberation, assist
the parties in preparing for
review, and restrain agencies
within the bounds of their
jurisdiction.
Fields, 628 P.2d at 932 (quoting Mobile
Oil Corp. v. Local Boundary Comm'n, 518 P.2d
92, 97 n.11 (Alaska 1974)).
The reasons for requiring decisional grounds to be
expressed are applicable to decisions of the parole board concern
ing challenged conditions of parole. As noted, supplemental
conditions must bear a reasonable relationship "to the parolee's
offense, prior record, prior behavior, current circumstances or
perceived risk to the community." 22 AAC 20.205(a). Requiring a
statement of reasons will focus the board's attention on the need
for this relationship and, using the terms of Mathews v.
Eldridge, 424 U.S. at 335, reduce "the risk of an erroneous
deprivation of [the parolee's] interest." Reasons need not be
expressed with formality, however, thus this requirement should
not prove to be unduly burdensome. In this case the expression
of reasons by the individual parole board member who imposed the
supplemental conditions after reviewing Bynum's comments, are, in
form, minimally sufficient.10
4. Hearing on Conditions Restricting
Constitutional Rights
Finally, Bynum argues that if the proposed supplemental
conditions "are intended to restrict or impinge upon [an
inmate's] constitutional rights,"a hearing must be provided. At
least two of the special conditions imposed on Bynum implicate
constitutional rights: submission to searches for drugs and for
alcohol. Bynum cites Roman v. State, 570 P.2d 1235 (Alaska
1977), to support his argument that due process requires a
hearing prior to the imposition of these conditions.
In Roman, we recognized that conditioning release on
consent to searches is "consistent with the goal of
rehabilitation and necessary for the proper functioning of the
parole system." Id. at 1242. However, we also stated that a
search condition could be imposed only by the parole board and
only after the parolee has an opportunity to be heard. Id. at
1244. The procedure followed in the present case meets both of
the foregoing requirements. The parole board approved all of the
search conditions imposed on Bynum. Additionally, Bynum was
given the opportunity to object to each of the proposed
conditions and state the reasons for his objections. Bynum does
not present any specific arguments why these procedures did not
afford the process required by Roman.11
Based on the foregoing we conclude that the procedures
employed to impose special parole conditions on Bynum satisfied
due process requirements. Bynum was given notice of the proposed
conditions, he had an opportunity to make his objections to them
known and to correct any mistaken facts on which they were based,
and the board member who imposed the conditions explained his
reasons for rejecting Bynum's objections. No more is required.
B. Is 22 AAC 20.200, the regulation which
imposes fourteen standard conditions of parole,
inconsistent with AS 33.16.150 which mandates one
standard condition, and authorizes the board to
require other conditions?
Bynum argues that 22 AAC 20.200 conflicts with the
statute which authorizes it, AS 33.16.150. An agency's
regulations must be consistent with the authorizing statute. AS
44.62.030; Vail v. Coffman Engineers, Inc., 778 P.2d 211, 214
(Alaska 1989). Alaska Statute 33.16.150(a) states that "[a]s a
condition of parole, a prisoner released on discretionary or
mandatory parole shall refrain from conduct punishable by
imprisonment under state or federal law or municipal ordinance."
This requirement is mandatory for all parolees. In addition, AS
33.16.150(b) lists seventeen additional conditions that the board
may require of a parolee. The board has adopted regulations
which require that all parolees follow eight of these conditions.
22 AAC 20.200. Bynum argues that the board's adoption of 22 AAC
20.200 is inconsistent with AS 33.16.150 because the regulation
replaces the discretion intended by the statute with a per se
rule.
Administrative law doctrine lends support to the
regulation at issue. If an administrative agency is given
discretion to dole out a privilege or impose a restriction, the
agency may generally restrict its own discretion by formulating
mandatory rules. Fook Hong Mak v. Immigration & Naturalization
Serv., 435 F.2d 728, 730 (2d Cir. 1970); see also 2 Kenneth C.
Davis, Administrative Law Treatise 8:8, at 192-96 (2d ed.
1979). The agency need not engage in case-by-case review if it
can formulate per se rules that are reasonable and consistent
with the statutory framework. Davis, supra, 8:8, at 192-93.
The only limitation on the agency in adopting such rules is if
individualized consideration is mandated by the text or purpose
of the statutory scheme. Id. at 192 ("[R]ules may preclude
discretion as long as they do not cut off needed
individualizing.").
Nothing in AS 33.16.150 prohibits the board from
mandating by regulation some of the statutory conditions listed
in section .150(b). Neither the language nor the purpose of the
statute suggests that individualized consideration of each of the
.150(b) conditions is required in every case. Further, the board
retains the discretion not to impose or to modify any conditions
at any time. 22 AAC 20.200(c); 22 AAC 20.225. We conclude,
therefore, that 22 AAC 20.200 is not in conflict with AS
33.16.150.
C. Are mandatory parolees denied equal
protection of the laws because they are not
permitted to appear before the parole board prior
to their release while discretionary parolees are
granted the right of an in-person appearance?
Under AS 33.16.130(b), an inmate is entitled to an in-
person hearing regarding his application for discretionary
parole. Alaska law does not provide a comparable hearing for an
inmate eligible for mandatory parole. Bynum argues that this
different treatment denies the mandatory parolee equal protection
under the Alaska Constitution.
We have held that "[e]qual protection requires that
those similarly situated be treated equally . . . ." Ketchikan
Gateway Borough v. Breed, 639 P.2d 995, 995-96 (Alaska 1981). In
the present case, discretionary and mandatory parolees are not
"similarly situated"with respect to the need for a personal
appearance hearing. Discretionary parolees are not assured of
release upon eligibility for discretionary parole. If the
parolee is eligible for discretionary parole, the "board may
authorize release"after consideration of certain factors. AS
33.16.100(a) (emphasis added). The purpose of the parole hearing
is to allow the discretionary parolee an opportunity to persuade
the board that he should be released on parole. The hearing is
not provided to consider and review conditions of parole, but
rather to determine if the prisoner meets the criteria for
discretionary parole under AS 33.16.100(a). If the prisoner
meets the criteria, the board may authorize his release prior to
the expiration of his sentence.
In contrast, the mandatory parolee must be released on
parole at the end of his sentence less time deducted for good
conduct.12 AS 33.20.030. In the case of mandatory parole, there
is nothing for the board to consider with regard to whether a
mandatory parolee should be released. Thus, the purpose of the
hearing Bynum requests is fundamentally different from that
provided to those eligible for discretionary parole. For this
reason, the discretionary and mandatory parolee are not similarly
situated and, thus, Bynum's equal protection argument must fail.
D. Does the placement of probation officers in
the executive rather than the judicial branch of
government violate the separation of powers
doctrine?
Smith's argument on this issue is that probation
officers are labeled "officers of the superior court" in AS
33.05.030; AS 33.05.020 commits the hiring, training, and
supervision of probation officers to the Commissioner of the
Department of Corrections, an official of the executive branch;
and, thus, the legislature has violated the separation of powers
doctrine by granting an official of the executive branch control
over officials of the judicial branch.
As the State points out, however, Smith's argument does
not withstand scrutiny. The mere label "officer of the court"
does not necessarily make probation officers core members of the
judicial branch of government. Rather, as we stated in Bradner
v. Hammond, 553 P.2d 1, 6 (Alaska 1976), the question is whether
the government action involved is a legislative, executive or
judicial "function."
The question whether probation officers should be
included within the judicial rather than the executive branch of
government is reasonably debatable. In some states and in the
federal system probation officers are part of the judicial
branch, in others they are part of the executive branch. See 18
U.S.C. 3602 (1985); Ariz. Rev. Stat. Ann. 12-251 (1992)
(probation officers part of judicial branch); Cal. Penal Code
1203.6 (West 1992) (same); Idaho Code 20-214 (1993) (Board of
Corrections has power and authority to employ and fix duties of
probation officers). The probation function, in fact, appears to
be one of those areas of shared responsibilities among the
executive and judicial branches. See e.g., Mistretta v. United
States, 488 U.S. 361, 390 (1989) (stating that "the sentencing
function long has been a peculiarly shared responsibility among
the Branches of Government and has never been thought of as the
exclusive constitutional province of any one Branch").13 The
Alaska Constitution does not assign probation officers to the
exclusive jurisdiction of either the executive or the judicial
branch of government. It follows that the Alaska Legislature's
decision to place probation officers in the executive branch does
not violate the separation of powers doctrine.
III.
For the reasons stated above, the decision of the
superior court is AFFIRMED.
_______________________________
1 AS 33.20.030 provides:
A prisoner shall be released at the
expiration of the term of sentence less the
time deducted for good conduct. A
certificate of deduction shall be entered on
the commitment by the warden, keeper, or the
commissioner.
2 AS 33.20.040(a) provides:
Except as provided in (c) of this
section, a prisoner released under AS
33.20.030 shall be released on mandatory
parole to the custody and jurisdiction of the
parole board under AS 33.16, until the
expiration of the maximum term to which the
prisoner was sentenced, if the term or terms
of imprisonment exceeded are two years or
more. However, a prisoner released on
mandatory parole may be discharged under AS
33.16.210 before the expiration of the term.
A prisoner who was sentenced to a term or
terms of imprisonment of less than two years
shall be unconditionally discharged from
mandatory parole.
AS 33.16.900(7) provides:
"[M]andatory parole"means the release
of a prisoner who was sentenced to one or
more terms of imprisonment of two years or
more for the period of good time credited
under AS 33.20, subject to conditions imposed
by the board and subject to its custody and
jurisdiction.
3 The notice stated:
Notice to the prisoner who is subject to
this report:
This report is prepared for the Parole
Board when establishing supplemental
conditions of mandatory parole. You have ten
working days from the date you receive your
copy to add your comments. Information must
be submitted in writing through your Institu
tional Probation/Parole Officer who will mail
the comments to the Board.
4 The reasons were that Bynum had dropped out of the
prison sexual offender program and was regarded as a high risk to
re-offend. He had manufactured alcohol in prison and the
discharge summary from the sexual offender program suggested that
he had been addicted to marijuana. The discharge summary
specifically recommended no contact with minors under eighteen.
5 22 AAC 05.095(b) and (h) provide:
(b) In the absence of a state or
federal law to the contrary, a prisoner or
the prisoner's attorney must be granted
access, upon request, to the prisoner's
records in order to prepare for a
classification, disciplinary, parole,
revocation, or judicial hearing, or appeal
from such a hearing, subject to (d) of this
section.
. . . .
(h) If a hearing described in (b)
of this section is not scheduled, a prisoner
may have access, upon request, to the
prisoner's records once every 12 months.
6 The parties attempt to raise the additional question of
whether a prisoner may refuse a mandatory parole release. Bynum
did not raise this question below and has never suggested that he
wished not to be released. Smith did raise this question below.
Since he has successfully served his period of mandatory parole
the issue is moot and will not be reviewed in this case.
7 See also 22 AAC 20.205(a), which states:
In addition to the standard
conditions of parole set out in 22 AAC
20.200, the board will, in its discretion,
impose any supplemental condition that
reasonably relates to the parolee's offense,
prior record, prior behavior, current
circumstances, or perceived risk to the
community. Absent an emergency situation,
imposition of supplemental conditions will
not occur until the prisoner/parolee has had
an opportunity to comment upon the proposed
supplemental conditions.
8 22 AAC 20.205(b) provides: "Authority for imposition
of supplemental conditions is delegated to any member of the
board."
9 The overbreadth doctrine may give one standing to
challenge the constitutionality of a statute which is not uncon
stitutional as applied, but may be unconstitutional in some
cases. See Holton v. State, 602 P.2d 1228, 1232-34 (Alaska
1979); Anderson v. State, 562 P.2d 351 (Alaska 1977). However,
application of the doctrine is available only in the area of free
speech. See Anderson, 562 P.2d at 355 (stating that overbreadth
analysis is generally available only to challenge statutes which
arguably chill the exercise of first amendment rights); M.O.W. v.
State, 645 P.2d 1229, 1233 (Alaska 1982) (stating that
overbreadth doctrine has never been extended to one who asserts a
chilling effect on conduct protected only by right to privacy).
Since Bynum's challenge does not implicate his right to free
speech, he does not have standing to challenge hypothetical
applications of the parole procedures.
10 See, supra note 4.
11 Roman does not mandate an in-person hearing to review
special parole conditions. Rather, recognizing that a hearing
for discretionary parolees is routinely provided, we stated that
the hearing could serve the purpose of fulfilling a discretionary
parolee's right to be heard on intrusive parole conditions.
Roman, 570 P.2d at 1244 n.28.
12 An inmate is provided a hearing and other procedural
safeguards if the State attempts to reduce the amount of an
inmate's accumulated good time due to the inmate's alleged
misconduct. See 22 AAC 05.400 et seq. Thus, the mandatory
parolee does receive a hearing for any action affecting the
single factor -- good time -- that determines whether he will
receive mandatory parole. In this sense, both the discretionary
and mandatory parolee are treated similarly.
13 In the amicus curiae brief for the United States
Sentencing Commission in Mistretta v. United States, Professor
Paul Bator discussed the separation of powers with respect to
sentencing. Professor Bator stated:
[I]t is critically important to remember
that the Constitution does not . . . assign
the sentencing function to the exclusive
jurisdiction of any branch. Indeed, deciding
what punishment fits the crime is a paradigm
example of a responsibility that has, histor
ically, been shared among the three
branches. . . . Sentencing is thus preemi
nently a field where interbranch cooperation
and sharing of responsibility are
appropriate, and where rules must therefore
"be fixed according to common sense and the
inherent necessities of the governmental co-
ordination." quoting Hampton & Company v.
United States, 276 U.S. 394, 406 (1928).
Paul M. Bator, The Constitution as Architecture: Legislative and
Administrative Courts Under Article III, 65 Ind. L.J. 233, 274
(1990)(appendix reproducing portions of the Amicus Curiae Brief
of the United States Sentencing Commission as filed in Mistretta
v. United States). Professor Bator pointed out the effect of
this approach on the administration of probation and parole:
Currently, the administration of
probation is the responsibility of the
judicial branch whereas the administration of
parole is the responsibility of the executive
branch. Yet, functionally, both probation
and parole are forms of supervised release
that serve as alternatives to incarceration.
There is no reason to think that the current
allocation of responsibility is
constitutionally compelled. In fact there is
considerable interplay between probation
officers and the parole authorities.
Because probation officers are
"peace officers"and have "law enforcement"
powers such as the power to arrest, the
placement of the probation service in the
judicial branch and the courts' powers to
supervise (and remove) probation officers,
would become constitutionally suspect under
[a] rigid version of separation of powers.
Id. (citations omitted).